Frequently Asked Questions

Questions about the Navigable Waters Protection  Act or NWPA

What are Navigable Waters?
What is the Public Right to Navigation?
What is the purpose of the Navigable Waters Protection Act (NWPA)?
Who administers the NWPA?
Will the NWPA affect me?
What is an Approval?
What is a Work/Works?

General Questions about the Application for Approval

Who is a client or proponent?
What do I do before I start my construction?
Why do I have to comply with the NWPA?
How does the NWPA application and review process work?
I've heard that construction projects are treated differently depending on whether there is “Substantial Interference or Not”. What does this mean?
I've been told that I need to “Advertise my project”. How do I advertise my project to the public?
What is the Canada Gazette?
Who is a Commissioner of Oaths?

Specific Questions about the Application for Approval

Do temporary works require an approval from Transport Canada? How long is considered Temporary?
I own waterfront property that I plan to sell – does Transport Canada determine the navigability of my waterway? Can I build in the water included in my lot?
Is approval for bubbler systems required under the Navigable Waters Protection Act?
What is the ordinary high water mark and why is it significant?
What should I be aware of if my project involves infill of navigable water?

Questions about 2009 Amendments to the Navigable Waters Protection Act

So what has changed under this amended law?
The Minister has delegation powers under the revised Act. Does this mean anyone can approve projects on his behalf?
What are the penalties included in the legislation?
What is the exemption for existing Crown Works under the new Act?

Questions about Minor Works and Waters

What are minor works and waters and why was this introduced?
Who is responsible for determining the minor navigable waters and works? How will I know which works and/or waters fall under these specific classes?
Will the introduction of minor works and navigable waters under the revised Act mean that government protection of navigable waters has been eliminated or reduced?

Questions about the “Receiver of Wreck” duties of the NWPP

What is a wreck?
What type of obstructions or hazards is Transport Canada responsible for?
If I see something in the water that is interfering with navigation – do I report that to the NWPP?

Questions about Salvaging Wrecks

Definitions
Who can salvage a wreck?
What must I do as a salvor when I discover wreck?
As a salvor can I keep any wreck that I discover?
Would I be compensated for any salvage costs incurred?
What types of wreck are most frequently salvaged in Canada?
What should a salvor not salvage and why?
Will the Receiver of Wreck assist me in protecting my discovery from other salvors?
What are the consequences if I do not deliver wreck to the Receiver?

Contact us

Where can I obtain additional information?

Questions about the Navigable Waters Protection Act or NWPA

What are Navigable Waters?

In general, navigable waters include all bodies of water that are capable of being navigated by any type of floating vessel for transportation, recreation or commerce.I've heard that 

*Note: Frequency of navigation may not be a factor in determining a navigable waterway. If it has the potential to be navigated, it will be determined “navigable”.

What is the Public Right of Navigation?

The Canadian public right of navigation is not written anywhere – it is a right that has developed over time through Common Law. If the waters are navigable, then the public has the right to navigate. Gaining approval to restrict the public's right to navigate can only be done a few ways, including an Act of Parliament.

What is the purpose of the Navigable Waters Protection Act (NWPA)?

The NWPA minimizes the interference of navigation on navigable waters throughout Canada.

It ensures a balance between the public right to navigate and the need to build works such as bridges, dams or docks in navigable waters.

With this goal in mind, the NWPA:

Unless you have gone through the Approval process and the Minister of Transport has approved the work, site and plans,
Or unless your work or the water qualifies as a minor work or water.

The Act applies to any interference of navigation – in, on, over, under, through or across – Canadian navigable waterways.

Contact the NWPP office in your region for more information about the approval process or for help on determining a minor work or water. Or call toll-free 1-877-842-5606 – At Your Service.

Who administers the NWPA?

Transport Canada, through the Navigable Waters Protection Program administers the NWPA. NWPA Approvals are granted under the authority of the Minister of Transport.

Will the NWPA affect me?

Yes, the NWPA applies to all governments – federal, provincial, or municipal – and to all persons, companies, organizations and Crown Corporations that are planning to construct or modify a work in, on, over, under, through or across any navigable waterway.

Such works include but are not limited to: wharfs, docks, piers, dams, booms, bridges, overhead cables or pipelines.

However, you will not need to gain a formal approval for your work if your work qualifies as a Minor Work.

What is an Approval?

Approval refers to an approval document authorizing construction in navigable waters. The Minister of Transport or his/her designated representative issues this document.

What is a Work / Works?

The term work or works refers to any proposed project that is subject to review and approval under the Navigable Waters Protection Act (NWPA).

• any man-made structure, device or thing – temporary or permanent
• any dumping of fill in navigable water, and
• any excavation of materials from the bed of any navigable water.

Works also include all other construction, permanent or temporary, related to the main project.

Some examples include: any bridge, boom, dam, wharf, dock, pier, tunnel or pipe, telegraph, power cable or wire.

It is wise to contact your local NWPP Office before proceeding with construction in navigable waters. Or you can call a central line toll-free by dialing 1-877-842-5606 – At Your Service.

General Questions about the Application for Approval

*Your project may be considered a Minor Work and Application would not apply.

Who is a client or proponent?

A client or proponent is anyone – Individual, Company or Government Agency – who proposes to construct, repair or modify work in the navigable waters of Canada.

If you are working with the NWPP to gain approval for your work, during the process, you may be referred to as a “client” or a “proponent”.

What do I do before I start my construction?

Contact the Navigable Waters Protection Program
Before you start your project, call 1-877-842-5606 At Your Service or contact the nearest NWPP office to discuss in general terms the construction of the work you are proposing to build.

A Navigable Waters Protection Program Officer will assist you in determining what information and documentation is required for preparing and submitting an application to the NWPP Office.

The required information includes such items as:

• details regarding the applicant (either you or the agent)
• the nature of the work,
• other approvals obtained (see *Important Note below)
• property ownership and
• drawings and plans of your proposed work.

*Important Note: An “Approval” issued under the NWPA authorizes the work only in terms of its effects on navigation. It remains the applicant's responsibility to obtain other approvals that may be required. We encourage you to contact your local municipal offices early in the planning stage to discuss their requirements.

Why do I have to comply with the NWPA?

Interfering with navigation is against the law. Therefore, if you interfere with navigation without gaining the Approval of the Minister of Transport, Transport Canada may order you to remove or alter the work and you may be subject to fines and/or prison.

NWPA Approval gives you authority to interfere with the public right of navigation while ensuring your work is not dangerous to the navigating public. You are encouraged to consult with the NWPP regional office nearest to you or call 1-877-842-5606 before planning your project.

How does the NWPA application and review process work?

Because every project affects navigation differently, the process and the type of approval will vary depending on the complexity and the nature of the work. Applications are reviewed on a project-by-project basis. Note: Minor works do not need the approval of the Minister of Transportation.

Building new constructions/works:
New constructions happening in, on, over, under, through or across navigable waters with the potential for interfering with navigation must be reviewed by the NWPP. Examples of the types of works include but are not restricted to: wharfs, docks, piers, dams, booms, bridges, overhead cables or pipelines.

Rebuilding or altering existing constructions/works:
An application is also required – under subsection 10(1) of the NWPA – for the repair, rebuilding or alteration of an existing work.

I've heard that construction projects are treated differently depending on whether there is “Substantial Interference or Not”.
What does this mean?

Applications are reviewed through one of two subsections in the Navigable Waters Protection Act (NWPA). The NWPP Officer will decide how much the work will interfere with navigation – whether your project may interfere substantially, or whether it will not interfere substantially. What happens next depends directly on that decision.

What is “Substantial Interference”? – the application of subsection 5(1)(2):
Substantial interference means that the proposed work will significantly alter the way that vessels pass down a navigable waterway or may make passage dangerous to the public.

When a project has the potential to substantially interfere with navigation, the process under subsection 5(1)(2), is followed.

What is “Not Substantial Interference”? – the application of subsection 5(1)(3)
The proposed work should not alter the passage of vessels in a significant way and should not make it more dangerous to navigate the waterway.

The process, under subsection 5(1)(3), is followed when NWPP officials determine that the work does not substantially interfere with navigation.

This process usually takes less time to complete, but might still require additional steps like public advertising.

I've been told that I need to “Advertise my project”. How do I advertise my project to the public?

Occasionally, a proponent must inform the public of the intended project in order to allow the public a chance to comment. (The public has an opportunity to comment on the project's potential impact on their personal navigation during the advertisement stage.)

Because the advertising must be presented in a specific form and fashion, we recommend that you consult with an NWPP Officer before creating the advertisement. You might have to repeat the process if you advertise outside of the NWPP timeframe or in a different format or location.

The NWPP Officer will guide your advertising and may be able to supply you with templates and tools to aid the process.

What is the Canada Gazette?

During the approval process, you may be required to advertise your project in the Canada Gazette – the official newspaper of the Government of Canada (since 1841). The Canada Gazette is published authority of the Statutory Instruments Act.

Who is a Commissioner for Oaths?

In some cases the NWPA requires proponents to engage a Commissioner of Oaths to attest to the authenticity of certain documents such as:

• copies of advertising,
• copies of plans deposited and
• statements made to prove ownership of wrecks

The Commissioner for Oaths ensures that the documents are accurate and that the person making and submitting the documents is indeed the person stated in them.

Persons designated to act as Commissioners for Oaths, usually, under provincial legislation are:

• Court officials
• Notary Public
• Lawyers
• Full-time commissioned officers in the Canadian Forces
• Members of a legislative assembly
• Members of a municipal councilor or a board of education of a ward or division

Specific Questions about the Application for Approval

Do temporary works require an approval from Transport Canada? How long is considered Temporary?

The length of time a work exists is not a factor when approving works, unless the work falls under the class of minor works in the Minor Works and Waters (NWPA) Order. Consult with the NWPP regional office nearest to you or call 1-877-842-5606 At Your Service to ask specific questions about your temporary work.

I own waterfront property that I plan to sell – does Transport Canada determine the navigability of my waterway? Can I build in the water included in my lot?

Transport Canada's determination of the navigability for waterways is solely related to the approval of works on those waterways. For the purposes of land severance owners should use the services of a land surveyor or a lawyer to research historical data and provide an opinion.

A water lot is a piece of land lying under a body of water. Water lots can be commercially or privately owned. Owning a water lot gives the owner property rights on that piece of land. The owner of the water lot does not own the water column above the water lot and owners cannot take away the public right to navigate on that waterway. Only approval from the federal government can give this authority.

Is approval for bubbler systems required under the Navigable Waters Protection Act?

A bubbler is a system of pipelines on the bed that inject air or water into the water column. It creates turbulent waters around the boat or dock preventing the formation of thick ice.
Pipelines resting on the bed of the water or suspended in the water column may need approval.

Fans can also prevent ice freezing in much the same way. Fans are suspended in the water column and circulate the natural water. Temporary fans suspended in the water do not require approval in the winter.

Note:  The duty and responsibility to safeguard an opening in the ice, caused by a bubbler, is found within the Criminal Code of Canada. Details regarding this responsibility can be found at
http://laws.justice.gc.ca/en/C-46/ under Section 263 Offences Against the Person. If you are considering a bubbler system you may contact your insurance provider and local municipality before proceeding. Questions and concerns regarding dangerous open ice due to a bubbler system should be directed to your local police service.

What is the ordinary high water mark and why is it significant?

The ordinary high water mark is defined as “The mark left on the landscape by the highest level reached by navigable waters that has been maintained for a sufficient period to leave the mark on the landscape”.

This mark is significant for the NWP Program as it establishes a benchmark water level. The high water mark is sometimes used when calculating the clearance boats have from overhead and submerged projects.

What is the normal summer water elevation?

The normal summer water elevation is the water level during normal periods of navigation (usually June-September).

Much like the ordinary high water mark, the normal summer water elevation level is sometimes used to calculate the clearance boats will have from overhead and submerged projects.

What should I be aware of if my project involves infill of navigable water?

Infilling is looked at in a few ways – land creation, tailings deposition and disposal.

Land Creation

• Minor infilling for the purposes of creating small areas of land – usually used for parking lots, building construction, staging areas etc.
  Depending on the size, location and waterway, minor infilling is usually reviewed under Section 5(1)(3) of the NWPA. Note: If your project is very small, it might be considered a Minor Work and application would not apply.

• Large infilling for the purposes of creating land involving a significant number of hectares – usually for port or industrial development.
  These most often require a Formal Approval under section 5(1)(2) of the NWPA. We recommend that you consult with NWPP staff early in the planning phase for large infilling projects.

• Infilling using dredged spoil, uncontaminated material recovered from dredging operations deposited to create land. Depending on the size, location and waterway, these projects are usually handled under Section 5(1)(3) of the NWPA Note: If your project is very small, it might be considered a Minor Work and application would not apply

Tailings Deposition Areas

Tailing areas affecting the public right to navigation are addressed by Section 23 of the NWPA and involve special permits through Order In Council.

Several federal departments and agencies have additional responsibilities to review the environmental impacts of tailings areas, including Environment Canada.

Disposal of Dredged Soil

Disposing dredged soil into an approved dumpsite underwater is reviewed under Part II of the Act.

Questions about the 2009 Amendments to Navigable Waters Protection Act (NWPA)

So what has changed under this amended law?

Changes to the NWPA include:

• grandfathering of existing Crown Works
• updated enhanced enforcement provisions, and
• the ability of the Minister to make regulations and Orders.

The Minister has delegation powers under the revised Act. Does this mean anyone can approve projects on his behalf?

Only certain employees are authorized to issue Approvals for the Minister of Transportation.

Under the Delegation of Authority Act, Ministers are able to assign certain duties (i.e. issuing of approvals). For many years, some Transport Canada officials, including Managers of the Navigable Waters Protection Program, have had delegated authority to issue project Approvals.

These staff members are recognized throughout the federal government as experts in the area of navigation and navigation impacts. Only the employees of Transport Canada with these delegated authorities and proper training are authorized to carry out these duties.

What are the penalties included in the legislation?

The legislation imposes fines up to $50,000 per infraction per day – a serious and meaningful deterrent to non-compliance.

What is the exemption for existing Crown Works under the new Act?

Prior to 1992, the Crown (various levels of government, departments and agencies) did not believe that works constructed by the Crown were subject to the NWPA. That interpretation was changed by a 1992 Supreme Court decision (Old Man River Dam), which determined that the application of the NWPA indeed applied to Crown works.

Consequently, thousands of existing Crown works have never received NWPA approval. In the past, when these works needed repair or modification, an Application for Approval of the existing work itself was required first – beforethe Crown could submit a second application for the repair or modification.

To eliminate the extra time and effort spent on issuing multiple approvals, existing works owned by the Crown are now “grand fathered” and do not need to apply for the original Approval.

It is important to note however, that existing Crown works needing repair or modification are still subject to the requirements under the NWPA and that the Approval for the modifications must be granted before the project can begin.

Questions about Minor Works and Waters

What are minor works and waters and why was this introduced?

The Minor Works and Waters (Navigable Waters Protection Act) Order identifies certain classes of works and navigable waters that may be exempted from the application process under the Act. This was introduced to streamline the federal approval processes to save effort for some proponents.

Who is responsible for determining the minor navigable waters and works? How will I know which works and/or waters fall under these specific classes?

Minor Waters - An exemption is granted when their physical characteristics limit any realistic potential for practical navigation, for example, drainage ditches, seasonal waterways, private lakes etc.

Proponents of potential works are expected to use the criteria as outlined in Minor Works and Waters (Navigable Waters Protection Act) Order to self-assess based on the criteria at hand. The proponents are fully responsible for ensuring that all criteria are being met in order to comply with the Order requirements. Failure to do so may result in enforcement measures.

If in doubt, we recommend that you contact your regional NWPP office for advice or call toll-free 1-877-842-5606 At Your Service.

Will the introduction of minor works and navigable waters under the revised Act mean that government protection of navigable waters has been eliminated or reduced?

No. The protection of the public right to navigate continues to be the main objective of the NWPA. If you travel in a boat as small as a canoe in water to get from place to place that is still subject to the oversight and protection of the NWPA.

Questions about the Receiver of Wreck duties of the NWPP

What is a Wreck?

• a vessel of any description,
• an aircraft, or
• any part of a ship, boat or airplane
• cargo, stores, tackle or personal belongings of the crew or shipwrecked people

that…

• floats,
• sinks to the bottom or
• lands ashore.

What type of obstructions or hazards is Transport Canada responsible for?

The term obstruction as it relates to Transport Canada is defined as any structure, vessel, or thing – or part of any thing, which may interfere with the public right of navigation in any navigable waterway.

Obstructions fall into one of five categories:

• A structure, part or ruin of any structure;
• A wreck or abandoned vessel or part thereof;
• Pollutants or garbage;
• Debris such as fallen trees, deadheads, floating wood, or dead animals;
• Natural things such as submerged rocks or shoals.

Transport Canada/NWPP is responsible for Categories 1 and 2 obstructions that are not of natural origin. Categories 3, 4, and 5 are the responsibility of the province, municipality or other government agency.

If I see something in the water that is interfering with navigation – do I report that to the NWPP?

Transport Canada only has the authority to respond to complaints that pertain to navigational issues (hazards or obstructions to navigation). To lodge a complaint, call toll-free 1-877-842-5606 At Your Service to be directed to your closest regional NWPP office.

When you call, please have the following information ready:

• how this is affecting the navigation of the water
• the exact location of the issue and
• any contact information on the owner of the obstruction, if known.

Questions about Salvaging Wrecks

Definitions:

Salvage: Saving a ship or its cargo from loss
Salvor:One who saves or assists in saving a ship or its cargo from loss

Who can salvage wreck?

A salvor may be an individual, a company, the owner of wreck or the owners' representative, or municipal, provincial, territorial or federal agencies.

What must I do as a salvor when I discover wreck?

The salvor, (unless he/she is or the owner of the wreck or agency acting on behalf of the owner of wreck), has an obligation to report the finding and holding of wreck to the Receiver of Wreck officer.

Salvors are required to contact the regional NWPP office to obtain a copy of the Notice of Salvors of Wreck form.

As a salvor can I keep any wreck that I discover?

No, unless you are the owner or are given permission by the owner. A ship that sinks or goes aground, or cargo that is lost over the side is still the property of the original owner – the shipper, the company to which a vessel is registered or an insurance company.

Would I be compensated for any salvage costs incurred?

Salvors are entitled to reasonable salvage costs and expenses for their efforts as determined by the receiver. The salvage award may be the wreck or all or part of the proceeds of its sale, but may not exceed the value of the wreck. The process of determining salvage fees can take from 90 days or longer.

What types of wreck are most frequently salvaged in Canada?

• Modern day commercial and pleasure vessels
• Parts of cargo of ships or boats
• Aircraft

What should a salvor not salvage and why?

• Military wreck. In most cases neither the Canadian nor foreign governments will grant permission to salvors to salvage military wreck because of danger associated with unexploded ammunition. Also, in some cases, a military wreck is consider a gravesite and cannot be disturbed.
• Sites of national interest. Wrecks that have historical or heritage value to Canadians should not be disturbed.
• Wreck that contains goods of a dangerous nature (polychlorinated biphenyls (PCB) or other chemical products).

Will the Receiver of Wreck assist me in protecting my discovery from other salvors?

Salvors have no ownership rights to the wreck and the Receiver of Wreck will not protect or patrol the wreck site.

What are the consequences if I do not report wreck to the Receiver?

Not reporting wreck to the Receiver of Wreck is an offence and the person committing the offence is liable to a fine up to $100,000 and/or imprisonment up to a year.

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Where can I obtain additional information?

Contact the Navigable Waters Protection Program office, Receivers of Wreck in your region.